Moussaoui Sentencing Case Goes to the Jury

By NEIL A. LEWIS

Published: March 30, 2006

The jurors in the case of Zacarias Moussaoui began deliberating Wednesday whether he is eligible for the death penalty, after prosecutors told them that he had been in the thick of the Sept. 11 plot and his lawyer portrayed him as a feckless ''Al Qaeda hanger-on.''

In a reflection of the unusual roads the trial has taken, the prosecutors based their closing argument largely on Mr. Moussaoui's own testimony to bolster their case that he should be executed. Mr. Moussaoui's chief court-appointed lawyer, in turn, relied mostly on the testimony of a prosecution witness, an F.B.I. agent, to argue that the defendant should instead be given a life sentence.

Mr. Moussaoui has already pleaded guilty in connection with the conspiracy; only the sentence is at issue in the trial. But the nine men and three women of the jury are not deciding even at this stage whether he should be executed. Under federal law, they must first consider whether Mr. Moussaoui, who was in jail at the time of the attacks, is eligible for the death penalty.

To reach such a finding, Judge Leonie M. Brinkema told them, they must consider whether his actions led directly to any deaths on Sept. 11, 2001. If they decide unanimously that the answer is yes, they will hear evidence of any aggravating factors like the large number of victims, and of mitigating factors like Mr. Moussaoui's mental health. After that phase, the jurors would decide whether to recommend execution. The death sentence would require another unanimous vote, and Judge Brinkema would be obliged to impose it.

In trying to convince the jury that Mr. Moussaoui was responsible for at least some of nearly 3,000 fatalities that day, David Raskin, a federal prosecutor, said that when Mr. Moussaoui was arrested for immigration violations three weeks before the attacks, he used training he had received from Al Qaeda to protect the other plotters by lying to investigators.

''Zacarias Moussaoui came to this country to kill as many Americans as he could,'' Mr. Raskin told the jury, citing the defendant's startling testimony on Monday that his arrest had kept him from flying a plane into the White House on Sept. 11. ''So instead, he killed people by lying.''

Mr. Raskin referred repeatedly to Mr. Moussaoui's testimony, in which he acknowledged the essence of the government's case: that he had known much about the plot and had concealed that knowledge.

''How do you know the defendant lied?'' Mr. Raskin said to the jury. ''Well, because the defendant admitted it here in the courtroom.''

Had Mr. Moussaoui told the truth when he was arrested, Mr. Raskin said, the Federal Bureau of Investigation and the Federal Aviation Administration would have thwarted much of the plot if not all of it. For example, he said, the F.B.I. would have obtained from Mr. Moussaoui's belongings a list of American flight schools -- two of them in Venice, Fla., that were marked on the list with Arabic notations. Those two schools trained two of the Sept. 11 hijackers.

But Edward B. MacMahon Jr., the chief defense lawyer, said Mr. Moussaoui was clearly being driven by a desire for notoriety in asserting plans for him to crash a plane into the White House, changing his earlier account that he had been uninvolved in Sept. 11.

''He was never slated, except in his dreams, to be part of the plot,'' Mr. MacMahon said. ''Now he wants to write a role for himself in history when the truth was he was an Al Qaeda hanger-on.''

Moreover, the defense argued, it is entirely speculative to say that if Mr. Moussaoui had told the truth, the government would have thwarted the plot.

Mr. MacMahon cited the testimony of Harry Samit, an F.B.I. agent in Minneapolis who arrested Mr. Moussaoui and became convinced that he was a terrorist involved in some imminent hijacking. Mr. Samit said under Mr. MacMahon's cross-examination that his supervisors in Washington had been ''criminally negligent'' in bungling the case.

''Agent Samit's work was tremendous,'' Mr. MacMahon told the jury, but he was repeatedly obstructed by superiors at the bureau. There is no evidence, the lawyer said, that if Mr. Moussaoui had disclosed what he knew, the F.B.I. ''would have transformed itself into a flawless institution.'' He asked the jurors to frustrate Mr. Moussaoui's expectation that they will move to have him killed simply because they are Americans.

''Show him we are not the hate-filled vengeful Americans Zacarias Moussaoui thinks you are,'' Mr. MacMahon said.

During Mr. MacMahon's final argument, Mr. Moussaoui, who does not speak to his lawyers, slumped low in his chair at the side of the courtroom, his eyelids heavy. When the prosecutors spoke, he seemed more attentive.